About the SCFF Blog

This blog aims to provide expert opinion and analysis on a wide range of issues relevant to the debate over Scotland's constitutional future, primarily but not exclusively from a legal perspective. The SCFF is not aligned with any political party or any particular position in the debate and posts will therefore express a variety of different points of view. If you would like respond to a particular post, or to submit a new topic for consideration, please email: contact@scottishconstitutionalfutures.org.

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The early months of the 2014 independence referendum were dominated by process issues: who got to decide whether – and if so, on what terms – a referendum would take place? Following Nicola Sturgeon’s call on Monday for a second independence referendum, it looks like process issues will be equally problematic this time around.

This week, the UK Supreme Court is hearing four days of oral argument (5 – 8 December 2016) in the appeal from the decision of the High Court in R. (Miller) v. Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin), which decided in effect that the UK Government could not give notice of withdrawal from the European Union (EU) without parliamentary approval. The case has been hugely controversial, not only in the mass media, but also amongst legal commentators who have provided numerous blogs arguing both for and against the correctness of the decision.

The Divisional Court’s ruling in R (Miller) v Secretary of State for Exiting the European Union that parliamentary authorisation is required before the Prime Minister can give notice of the UK’s intention to withdraw from the EU under Article 50(2) TEU raises the question of what role, if any, the devolved legislatures will have in that process.

The Brexit referendum offers a cautionary tale and an unexpected opportunity. The cautionary tale is about the referendum as a decision making device. The unexpected opportunity arises from the effects of Brexit on the distribution of power amongst the legislatures and governments of the UK.

Several joined cases are to be heard in the High Court in London early next month arguing that the UK Government is not legally entitled to notify the UK’s intention to withdraw from the European Union under Article 50 TEU without the prior approval of the UK Parliament. Other cases, raising somewhat different arguments, are also due to be heard in Belfast. Last week one set of the London claimants (the “People’s Challenge Interested Parties” (PCIP)) published their skeleton argument, and the Government has now also been required to publish its grounds of resistance.

One of the consequences of the vote for ‘Brexit’ in the EU referendum on 23rd June has been to focus renewed attention on the Scottish question. In this blog I want to look both forward, to the possibility of a second independence referendum, and backward, to compare the EU referendum with the Scottish independence referendum of 2014.

Referendums are supposed to provide decisive interventions in the affairs of state. They are designed to produce clear ‘yes or no’ answers to large political questions. And as these answers also come with a rare level of popular endorsement, this should facilitate their effective and timely implementation.

This is a reply to Iain Jamieson’s post which was itself a response to a post of ours discussing the significant changes to Scots landlord and tenant law contained in provisions of the ( then) Immigration Bill. Royal Assent to the Immigration Act 2016 (c.19)( the 2016 Act) has since been granted, and so the way is clear for the provisions under discussion to be implemented. Iain Jamieson’s post proceeds on the assumption that we consider that the enactment of these provisions without the consent of the Scottish Parliament constitutes a breach of the Sewel convention as currently understood.

It is at present uncertain whether the Sewel convention, which has now been put on a statutory footing by s. 2 of the Scotland Act 2016, will fall to be interpreted by a court in the same way as any other statutory provision (see my earlier post here). It is therefore opportune to consider how it might be interpreted.

The way in which the UK Government has given effect in section 2 of the Scotland Act 2016 to the recommendation of the Smith Commission that the Sewel convention should be put on a statutory footing gives rise to a number of difficult constitutional questions for the Scottish and UK Parliaments and Governments and the courts.

The Immigration Bill, which received its third reading in the House of Lords on Tuesday of this week (12/04/16), is a wide-ranging measure, running to 98 sections and 15 schedules ostensibly designed to make immigration control more effective. It included measures on, inter alia, the labour market, residential tenancies, bank accounts, driving licences and taxi licensing, enforcement powers of immigration officers, immigration detention and bail, and transfer of support for migrant children. The Immigration Bill and its precursor, the Immigration Act 2014, are of interest to constitutional lawyers for several reasons. This blog concentrates on one particular issue: the intrusions made by the Bill, and the 2014 Act which it amends, into the devolved competence of the Scottish Parliament ...

On 18th September 2015, the anniversary of the referendum on Scottish Independence, David Cameron announced that the UK Government plans to amend and strengthen the Scotland Bill currently progressing through the UK Parliament, to make ‘crystal clear’ that ‘Scottish devolution is woven into the very fabric of our United Kingdom’. This amendment would be designed to ensure ‘there is absolutely no doubt: Holyrood is here to stay’.

Now is a good time to reflect on some of the constitutional and parliamentary implications of EVEL (‘English Votes for English Laws’), or what used to be known, in its various manifestations over the last 40 years, as the ‘West Lothian Question’ and, more recently, the ‘English Question.’

In his otherwise excellent entry to the UKCLA blog, Mark Elliot states that the repeal of the Human Rights Act (“HRA”) by itself, without anything more, such as its replacement by a British Bill of Rights or the withdrawal of the UK from the ECHR, would not trigger the Sewel Convention which would normally require the consent of the Scottish Parliament. However, I suggest that there may be at least 4 possible arguments for thinking otherwise.

On Friday 29 May 2015, the last possible day for lodging an election petition following the May 7 general election, some electors from Orkney and Shetland commenced their legal challenge trying to unseat Alistair Carmichael MP.

In the past few days repeal of the Human Rights Act, and in particular its devolution implications have attracted a lot of attention. To-day a new report is launched from a legal expert seminar in April 2015, on the legal implications of repeal of the human rights act (see below). The report provides the full chapter and verse, but here are a few quick points on the devolution implications, with further more detailed and reasoned resources below.

In those heady pre-election days, when polls were king and a hung parliament seemed inevitable (a week, it seems, really is a long time in politics), there was much excited/exasperated (delete as appropriate) talk of a ‘progressive alliance’ of SNP, Green and Plaid Cymru MPs joining forces to support or to form a government with the Labour Party.

In a dramatic moment during last year’s Scottish independence referendum campaign, the three main UK political parties made a “vow” to the people of Scotland, that substantial further powers would be devolved to Scotland in the event of a ‘No’ vote. To deliver the vow, Lord Smith of Kelvin was appointed to convene cross-party talks and facilitate an inclusive engagement process leading to recommendations for further devolution of powers to the Scottish Parliament within the UK. The Smith Commission report proposed enhancing devolved powers over a wide range of areas including tribunals.

When Gordon Brown made his key intervention in the final days of the referendum campaign, he promised a new devolution settlement which would be "as close to federalism as you can have in a nation where one part forms 85% of the population". Evaluating that claim requires a brief discussion of what federalism entails.

While the recommendations of the Smith Commission fall well short of the submissions made by the pro-independence parties (seeTom Mullen’s post on this blog for analysis), it is also clear that the process has produced more extensive proposals for further devolution than any pre-referendum agreement between the unionist parties would have done. Energy policy is a case in point.

Clearly every aspect of the Smith Commission Report is of importance to both women and men. What follows, is an attempt to assess where and how women have been specifically addressed, directly or indirectly, in the Report and its proposals.

The Smith Commission Report issued today promises a restructuring of the United Kingdom which may prove to be more significant than the devolution settlement of 1997-98 itself; the acquisition of extensive tax and welfare powers would make Scotland one of themost autonomous regions in western Europe.

The critical choice for the Smith Commission and any subsequent political negotiations over devolution in Scotland and beyond, is between a Union based on a rationale of separation, where ‘sharing’ of power across the UK at Westminster will require to be justified on an on-going basis in terms of effectiveness, efficiency and legitimacy; or a Union based on a rationale of sharing, which views the Union as existing because it encapsulates and can protect a set of common baseline values to which constituent parts of the Union subscribe to and have a stake in.

The Scottish Parliament was not just about ‘the sovereign right of the Scottish people to determine the form of Government best suited to their needs.’ It was also about the subjection of the government of Scotland to democratic scrutiny and control. ‘The Scottish Government will be much more accountable to the Scottish Parliament than the [UK] Government is to the Parliament at Westminster.’

In the month of November the Smith Commission is set to draw up the most significant programme of constitutional change for the United Kingdom since 1998. Already the period within which citizens could submit their views on this process has passed; the Commission having set a deadline of 5 p.m. on 31 October.

The Smith Commission is considering what further powers might be devolved to Scotland. Lord Smith was appointed immediately after the independence referendum, following the joint statement made by the leaders of the Conservative, Labour, and Liberal Democrat parties of ‘[p]ermanent and extensive new powers’ for the Scottish Parliament (‘The Vow’, Daily Record, 16 September 2014) in the event of a No vote.

The Conservative party’s proposal to repeal the Human Rights Act (and their proposal’s many faults) has already been well documented. However, the European Union is just as much a target of indignation for conservative and other eurosceptics, and David Cameron has promised, if re-elected, an in-out referendum by 2017, if the terms of Britain's EU membership cannot be renegotiated.

The Smith Commission is examining devolution of further powers to the Scottish Parliament, beyond those of the Scotland Act 2012. One topic it needs to consider is coordination between a devolved government and the United Kingdom and Scottish regulatory authorities, especially where these relate to economic growth.

The rocketing membership of the pro-independence parties shouldn’t be such a surprise. Thousands of energised Yessers feel an urgent need to express their unity and defiance, to hug and support each other, and to maintain the buzz and fellow-feeling of a mass campaign. The SNP and Green parties are convenient receptacles for the half-thwarted passions of ‘the 45%’, and both are credible keepers of the flame.

Only 45% of Scots said yes to independent statehood, but a massive majority said yes to direct democracy. The turnout of 84.65% was the highest for any UK electoral event since the introduction of universal suffrage, significantly trumping the 65.1% who voted in the 2010 UK general election and the 50.6% who bothered to turn out for the 2011 Scottish parliamentary elections.

The victory for the No campaign in last week’s referendum means that, for the foreseeable future, Scotland will remain part of the United Kingdom, and that its (domestic) governance will continue to be split between Westminster and Holyrood. The result was a decisive one in that there was a clear margin of victory, achieved through a fair and legitimate process. However, the referendum is less decisive than some may have hoped for in two senses.

This is a copy of a blog post that was, in the event, not needed. My colleagues have told me that my writing has a calming, if not soporific, quality, and I thought that I should use this skill to good effect by preparing a post for publication in the event of a ‘yes’ vote in the referendum. The post was written at a time when it looked like the vote could go either way. Now, just a few days later, the context in which it was produced seems both foreign and remote. There is a temptation – which I have resisted – to modify its text in the light of hindsight. I’ve left it unaltered: it stands as an exercise in counter-factual constitutional history, an engagement with the constitution crisis that might have been.

“Hello darkness, my old friend, I've come to talk with you again.” With apologies to Simon & Garfunkel, we note the post-referendum retrieval, from the very long grass in which it seemed to have been quietly resting, of the West Lothian/English Question (‘WLQ’). Oh dear.

Explaining the 85% turnout in the referendum is relatively straightforward. Explaining the 45-55% Yes-No vote is less so. Turnouts are generally affected by two factors: perceptions of the importance of the issue under debate and perceptions of how close the vote is likely to be. Taking these into account we would have expected a high turnout but 85% is at a level never previously witnessed in modern Scottish politics. More explanation is required.

Time is now running out for us all in the referendum debate, so I will keep this as short as I can. I hold many of the same views as my friends and colleagues Christine Bell and Aileen McHarg, both of whom have just posted on our common SCFF blog site detailed, well–argued and heart-felt cases for preferring the much-discussed uncertainties of ‘Yes’ to the newly minted uncertainties of the eleventh hour ‘Vow’ of Better Together.

Today’s papers carry the text of a pledge by David Cameron, Ed Miliband and Nick Clegg that a No vote in Thursday’s referendum is not a vote for the status quo. Rather, they claim, a No vote will mean ‘faster, safer and better change’ to the devolution settlement than a Yes vote would bring.

It’s the morning. I’ve got the kids out the door, a cup of tea in my hand. Aahh, I’ve time to think. In fact, I also work full time as Professor of Constitutional Law, so sometimes thinking is part of my job. But this is personal. I have a vote to cast and my kids, and a lot of other people’s future, appears to lie on it. And the tea helps more than the constitutional law – we have been off all constitutional charts for some time now.

The findings presented in this paper are based on an in-depth analysis of eight newspapers sold in Scotland (The Times, The Daily Telegraph, The Sun, The Daily Record, The Daily Express, The Daily Mail, The Scotsman and The Herald). For purposes of analysis, all relevant front-page articles, editorials and comment pieces were included in the study, with other articles and letters being omitted due to restrictions on time.

The People of Scotland are facing a remarkable constitutional and constituent moment. They will decide by referendum if they want to navigate the turbulent waters of the international society separately from the rest of the UK. At this moment, it is important to think about how the constitution of an independent Scotland should be.

Once upon a time it seemed like a good idea to try to clarify the route (Article 48 or Article 49 TEU) through which and the terms on which (with or without UK opt-outs on Euro, Schengen etc) an independent Scotland might join the EU prior to the great referendum vote of September 18th. Clarity would have allowed for a more informed assessment ahead of ‘D’ day by all involved in the drawn out constitutional drama – a more considered appraisal of the risks attendant upon this or that choice. But clarity has not been forthcoming, and it is now far too late in the day to imagine that it will.

I agree with Sionaidh Douglas-Scott that the accession of an independent Scotland to the European Union is not in any serious doubt. I develop this point in a paper written with Katie Boyle here. In this blog I argue that although accession will no doubt take time, there is unlikely to be any period within which Scotland is effectively cast out of the EU.

Whether anyone wants to exclude Scotland from the EU is a question of politics. Whether anyone has the ability to do so is a question of law. The tendency to assume that the politicians will determine the place of an independent Scotland in, or out of, the EU overlooks the fact that their room for manoeuvre is circumscribed by EU law.

The 2014 referendum on Scottish independence has rightly crystallised attention on the renewable electricity sector. With the possibility of Scotland gaining complete control over energy policy and related areas, understanding the implications for renewable deployment going forward is critical. However, the debate has concentrated on alternate post-referendum visions of the future often mired down in heavily politicised claims and counter-claims. Little attention has focussed on whether or not the Scottish proposals on the table to date amount to a significant change, whether the public vote for independence or to remain in the UK.

Referendums are now being used in constitutional decision-making to an unprecedented extent. It has been estimated that of the 58 functioning electoral democracies with a population of more than three million, 39 had conducted at least one national referendum between 1975 and 2000. Nowhere is the referendum more in vogue than in Europe.

The UK’s long-standing tolerance of dual citizenship, and the indications that, in the event of Scottish independence, rUK would change its policy, and withdraw British citizenship from some Scottish citizens has been discussed previously on this blog and elsewhere. As explored further below, the likelihood that British citizenship would be withdrawn from those with ties to other countries (including rUK) is small, and rulings on the withdrawal of EU citizenship could be invoked to protect the British citizenship of those who would be affected.

The negotiations between the European Union and the United States with a view to drafting and concluding the Transatlantic Trade and Investment Partnership Agreement (TTIP) have been met with very mixed reaction across civil society, the legal community and domestic policymakers on either side of the Atlantic.

As the Scottish independence referendum campaign reaches its final days, it may be worth highlighting a little-discussed aspect which may become very relevant immediately after 18 September – the assumption that the referendum will resolve the matter, either by a Yes vote inevitably leading to independence, or a No vote leading to the continuation of the present UK, probably with more devolution.

The Scottish Government’s paper Scotland’s Future and the Environment marks a late and limited entry of this topic into the independence debate. In some ways this may seem surprising given that landscape, generally good environmental conditions and ample natural resources are all positive features of many images of Scotland.

With the Scottish referendum vote imminent, every issue of relevance to the debate on Scottish independence takes on crucial significance. In the context of Scotland’s EU membership, there has been a polarisation of approaches, which in the arena of politics is probably only to be expected.

Last week's first televised debate of the referendum campaign revealed few surprises of tone or content, even if the outcome disappointed pro-independence hopes of a momentum-building surge in support. As expected, Alex Salmond concentrated on the core message of political self-determination, and the prospect of the new Scotland embracing a model of social and economic solidarity that London is increasingly unable or unwilling to deliver.

Three intertwined questions relating to citizenship will become of great importance if there is a ‘yes’ vote in the Scottish referendum. First, who will become, or be able to become, a Scottish citizen? Secondly, who will remain, or be permitted to remain, a United Kingdom citizen? Thirdly, and relatedly, who will become, or be permitted to become, a dual citizen, a citizen of both Scotland and the United Kingdom?

The UK Constitutional Law blog has recently seen posts addressing the UK’s relationship to the European Convention of Human Rights. In this post we will seek to extend that debate to the issue of Scottish independence. The framework for human rights protection contained in the Scottish Government’s recent publication, the Scottish Independence Bill: A Consultation on an Interim Constitution for Scotland is notable in promising a more robust form of legal protection for fundamental rights (what we might call a ‘rights affirmative’ constitutional arrangement) at a time when the prevailing mood in Whitehall is for a restriction in the role of the courts.

The Supreme Court, sitting as a bench of seven, yesterday dismissed the appeal brought by two Scottish prisoners challenging the provision of the Scottish Independence Referendum (Franchise) Act 2013 (the Franchise Act) that disenfranchises them: Moohan and Another v Lord Advocate UKSC 2014/0183.

In her speech at Edinburgh University launching the draft Scottish Independence Bill, Nicola Sturgeon claimed that ‘the prospect of a Constitutional Convention and a written constitution are, in themselves, positive reasons for voting Yes.’ Many intending Yes voters will agree with that statement, viewing independence not only as a way of addressing Scotland’s perceived democratic deficit, but also as an opportunity for democratic renewal.

"In Scotland, the people are sovereign". This is the foundation of the interim constitution that has been published in a draft bill by the Scottish government. In the event of a yes vote, this would provide the basis for the Scottish state during the first years of independence, pending the adoption of a permanent constitution some time after 2016.

Last Friday, I took part in a Scottish Constitutional Futures Forum event at Edinburgh University, entitled 100 Days to Go: Four Nations and a Union. The aim was to explore the impact of the independence referendum from the perspective of the United Kingdom and each of its constituent nations. The question I sought to answer was ‘has the UK had a good referendum?’

What might happen to the Union in the event of a no vote in the referendum? I was asked to address the legal process of constitutional change. Let me say straight away that from a legal or constitutional point of view there is nothing inherently difficult about changing the devolution settlement. It is simply a matter of amending the Scotland Act 1998, which defines the powers of the Scottish Parliament.

There has been some talk of the need for ‘reconciliation’ in Scotland post referendum. For those who view reconciliation as something we practice all the time, everywhere, this is not too disturbing. But most people think of this call as something different - a call for special that Scotland now needs that it did not before.

In its weighty tome, Scotland’s Future, the Scottish Government promises that at its heart, an independent Scotland will have “the respect, protection and promotion of equality and human rights.” Furthermore, this will not be just an empty gesture but will be “enshrined in a written constitution to bind the institutions of the state and protect individuals and communities from abuses of power.”

The Church of Scotland has this week extended an invitation to the leaders of the independence referendum debate to attend a service at St Giles’ Cathedral in Edinburgh, three days after the vote takes place. This service will look backwards into the future: focusing on ‘reconciliation’ and ‘healing [the] divisions’ caused by the campaign, in order to liberate the protagonists from their prior, seemingly entrenched, positions so that they might work together to construct or to renew Scotland’s constitutional settlement.

Full disclosure: I am an Irish citizen who has been (legally) living and working in Edinburgh for the past five years. By dint of this, I am entitled to vote in the independence referendum on September 18th. Not because I am a British citizen (which I’m not), not because I can vote in Westminster elections (which I can), not because I can claim some sort of affinity to this particular part of the current UK (although family lore suggests that some of my forebears hail from the West coast generations back), but because I live and work in Scotland.

So much for the facts, but what of the moral and ethical nature of the present stage in Scottish constitutional (re-)specification? In this piece, I argue that the debates over an independent Scotland’s ability to be economically self-sufficient and prosperous are unduly concerned with the facticity of competing claims, which obscures important ethical concerns.

The stated ambition of the Scottish Government is for an independent Scotland to be regulated by a central constitutional text; a “written constitution”. That was declared in its white paper of February 2013 ('Scotland's Future: from the Referendum to Independence and a Written Constitution') and further elaborated in its white paper of November 2013 ('Scotland's Future: Your Guide to an Independent Scotland'). The prevalent view seems to be that a constitutional code is necessary in the event of independence. That is, however, an assumption, and one that I seek to challenge.

The Scottish Government has recently announced its intention to introduce a draft Scottish Independence Bill into the Scottish Parliament which will set out an interim constitution for Scotland in the event of a Yes vote in September’s referendum. It will also describe the process by which a permanent written constitution will be drafted following the Scottish Parliament elections in 2016.

Referendums on constitutional change in Scotland produce ‘windows of opportunity’ to discuss the future of Scottish politics and policymaking. For example, the Scottish Constitutional Convention – an organization comprising political parties, interest groups, civic and religious leaders – formed in 1989 to promote the principle, and operation, of devolved government. It set much of the agenda during the devolution debates in the 1990s, promoting ‘new politics’, or widespread reform based on a rejection of political practices in ‘old Westminster’.

At the time the Edinburgh Agreement was signed, I argued that its most problematic aspect was the exclusion of a second question on further devolution; amongst other reasons, I thought that the question of what alternative constitutional futures for Scotland might be on offer would inevitably form part of the independence debate. So it has come to pass.

In a few months time Scotland will vote on independence. In my last post on the topic I discussed some of the consequences of a yes vote: the problems that would be raised around the currency, Scotland’s membership of the EU, and, more generally, the difficulties presented by the tight time-fame set by the Scottish Government for negotiation. That post should have given wavering ‘yes’ voters pause for thought; the path to independence is harder and riskier than the Scottish Government’s optimistic White Paper claims. In this post I will discuss one of the consequences of a no vote: its implications for subsequent independence referendums.

What happens if Scotland votes ‘no’ in September 2014? Would a re-examination of the constitutional structure of the UK be an important part of the reaction to the result of the independence referendum? And how would the future direction of any reform of the UK constitution be established? In thinking about such questions, the matter of how constitutional reform is undertaken in the UK (and indeed, to the UK) would fall to be considered. One mechanism for the evaluation of constitutional change which could feature prominently in such discussions is the constitutional convention.

As we know only too well, the Scottish Government’s current view, as set out in Scotland's Future, isthat “The right time for a written constitution to be drafted is… after independence not before”. This has given rise to a concern that, in the event of a Yes vote in September “Good constitutional design, so essential to the health of a country, is likely to be forgotten in the rush” to address immediate practical needs, such as to organising the Armed Forces or issuing postage stamps. So what prospect is there for promoting desirable but less pressing elements of the constitutional architecture, such as a right to information?

As commentators we seem to end many of our contributions to the independence debate with the rather unhelpful conclusion that much remains, and will continue to remain, uncertain; a state of affairs accentuated by recent comments on the prospect of currency union and EU membership. This must frustrate those hardy souls who read to the end of our blogs seeking enlightenment. Perhaps then we owe readers an explanation as to why it is so hard to offer a clear picture of how an independent Scotland will be brought about and what it would look like.

Let me lay my cards on the table. I remain inclined to vote 'no' in September's referendum. I put it no stronger than 'inclined' in part because I believe, in the spirit of democracy - even democracy referendum-style - that those of us who have not signed the party pledge should keep an open mind as long as possible.

The UK government up until now has clearly stated that it is not going to ‘pre-negotiate’ the break up of the Union. Yet today the UK Chancellor George Osborne, along with support from the Labour and Liberal Democratic parties, has ruled out in advance a currency union.

In Moohan, Gibson and Gillon, Petitioners [2013] CSOH 199 the Court of Session ruled on the legality of the blanket ban on voting by prisoners in the independence referendum, rejecting the challenge brought to it by three disenfranchised offenders serving lengthy sentences.

Crisis and change make for more dramatic reading than continuity. Black and white scenarios are often politically expedient. But the seasoned EU observer is more familiar with the various shades of grey which characterise the complex and multiple relationships between the EU: and its member states; its neighbouring states and even not-so-near states; and of course with applicant and accession states at various stages of membership readiness.

Whilst the Scottish Government White Paper Scotland’s Future can be regarded as aspirational what it is lacking, in some respects, is legal and practical detail and, of course, the devil is always in the detail. One of the areas that would benefit from more specific input is that of social and economic rights.

The debate about the currency is now well underway in Scotland, although not as yet in the rest of the United Kingdom (UK) and so far most of the current contributors are paying little or no attention to the legal issues. Instead , they are mostly focusing on a combination of economic discussion and some wishful thinking.

At 650 pages Scotland’s Future is not a light read. It stands as the Scottish Government’s manifesto for a yes vote in the independence referendum. The volume ranges from profoundly important questions relating to currency and Scotland’s membership of the European Union, right down to weather-forecasting and the future of the National Lottery. Though it is likely many copies of Scotland’s Future will be printed, it is unlikely many will be read from cover to cover. Its authors probably do not regret its length: by its very heft, the volume seeks to rebut claims that the consequences of independence have not been carefully thought through. This post considers the immediate constitutional consequences of a yes vote in light of Scotland’s Future. Its central argument will be that the timescale proposed by the Scottish Government for independence following a referendum is unrealistic, and may work against the interests of an independent Scotland.

The Scottish Government has set a date for independence, should it win the referendum, giving the period from 19 September 2014 to 23 March 2016 for the completion of the transition to an independent country and a full member state of the European Union and the OECD. In terms of the regulation of sectors of the Scottish economy it is a very tight schedule.

Were it to become independent, Scotland would have its own legal citizenship, and would in principle be free to define the circumstances in which that status was acquired. Scotland’s Future has added new detail concerning the content of Scotland’s citizenship law in the event of independence.

The White Paper affirms that ‘[f]ree education for those able to benefit from it is a core part of Scotland’s educational tradition and the values that underpin our educational system’ (p198). In that context, it is clearly stated that the Scottish Government would ‘continue to support access to higher education in Scotland for students from elsewhere in the EU in accordance with our support for student mobility across Europe’ (p200). On the previous page, however, the Government also asserts that it will ‘maintain the status quo by continuing our current policy of charging fees to students from the rest of the UK to study at Scottish higher education institutions’. It is difficult to see how these competing objectives can be reconciled under EU law.

Last week, I spent two days in London, accompanying a group of Constitutional Law students on a trip to the Westminster Parliament, the Supreme Court and the Scotland Office. The trip was part of a final year research project shadowing the House of Commons Political and Constitutional Reform Committee’s Inquiry into The Constitutional Role of the Judiciary if there were a Codified Constitution.

Immigration is a reserved matter under the Scotland Acts, so independence would enable a Scottish Government to shape its own immigration policy for the first time. A short section in Chapter 7 of the White Paper promotes a more protection-oriented approach to asylum, and places managed migration more centrally than the UK Government does.

The Scottish Government’s White Paper on Scotland’s Future, published on 26th November 2013, includes a chapter on education, skills and employment, and has a particular focus on the university sector. The paper notes that ‘the university sector is one of the main drivers of the Scottish economy’, contributing to the economic, social and cultural welfare of the nation.

Chapter 4 of the Scottish Government’s Independence White Paper deals with health, wellbeing and social protection. This includes policy on pensions, social security benefits, housing, NHS and other health matters.

Would the vision of an independent Scotland as described in the White Paper Scotland’s Future be a fairer nation? The White Paper sets out some interesting commitments but leaves some important questions unanswered.

The independence white paper contains a number of significant policy pronouncements and legislative commitments in the field of employment rights and employment relations. Insofar as it relates to the world of work, the white paper is striking for its emphasis of greater substantive equality as a key policy goal, for its recognition of the importance of employees’ rights in achieving that goal, and for the stated readiness of the Government to commit itself to involving trade unions and employers in government, recognising ‘the positive role that can be played by collective bargaining’.

Should Scotland vote yes next September the legislation on independence would place a duty on the Scottish Parliament elected in 2016 to establish a constitutional convention to prepare a permanent written constitution for Scotland (Scottish Government, Scotland’s Future: Your Guide to an Independent Scotland: p 332). There is understandable interest in what that constitution might say and how it might be made.

‘An independent Scotland will have an inclusive approach to citizenship’. So says the White Paper, and so said other earlierdocuments. That much we already knew. We know more now, in relation to the issues of birth, descent and residence, but there are still many gaps which need to be filled in.

On 11 February this year the government of the United Kingdom took the highly unusual step of publishing the legal advice that they had commissioned on whether, in the event of Scottish independence, Scotland would be regarded in international law as a new state and the remainder of the UK as a continuation of the United Kingdom of Great Britain and Northern Ireland.

The UK Government’s Scotland Analysis series kicked off with very firm statements that the Residual UK (R.UK) would be the “continuator state” if Scotland became independent, and that Scotland would (almost certainly) have to (re)apply for membership of international organisations as a new state (UN, NATO, EU, etc.).

Even without the referendum campaign, we probably would – or, at least, should – have a debate about local democracy in Scotland. Less than 40% of the Scottish electorate bothered to vote in last year’s local council elections.

An SCFF event will take place in Aberdeen on Friday 11th October at 6pm to discuss one of the contested and important issues in the Scottish independence referendum – what would happen to Scotland’s membership of the European Union (EU) in the event of a “Yes” vote for Scottish independence in the referendum in September 2014?

And so the countdown begins. But the countdown to what? Twelve months from now we should know the result of the referendum, but just how significant a marker will that be on Scotland's constitutional journey?

The 2012 Hansard Audit of Political Engagement states: ‘Voters are disgruntled, disillusioned and disengaged’. After countless scandals, crises and inquiries, is it any wonder that people think politics isn’t working for them. At the Electoral Reform Society (ERS) Scotland, we believe that the Scottish independence referendum debate is an opportunity to challenge our political system to change, to confound the low expectations voters have of politics, and to deliver on the high hopes they still hold for democracy in Scotland.

The Scottish Government recently published Consumer Protection and Representation in an Independent Scotland: Options, setting out its vision for a new distinctively Scottish consumer protection, advocacy and redress regime, should Scotland vote for independence. The intention is to streamline and simplify the current complex and confusing consumer landscape, in order to better meet the needs of consumers in Scotland.

The referendum on independence is still a year away and already attention is focused on major substantive issues such as economic relations between an independent Scotland and the United Kingdom, and the ease or difficulty with which an independent Scotland would achieve membership of the European Union. What is often overlooked is that the credibility of the outcome of the vote on 18 September 2014, whatever that might be, will depend greatly on the legitimacy of the referendum process itself.

That we are currently engaged in a debate that will lead, next September, to a referendum on Scottish independence is wholly accidental: an anomalous quirk of electoral arithmetic, as unintended by the electorate as it was unforeseen by the parties who contested the Scottish Parliament general election on 5th May 2011.

Last month I posted a blog analysing the report of the Expert Working Group on Welfare appointed by the Scottish Government to review its work on the cost of benefit payments in an independent Scotland, and the delivery of benefit payments and to offer views on immediate priorities for change.

The first of the two Bills providing the statutory framework for the independence referendum has now been passed by the Scottish Parliament. The Scottish Independence Referendum (Franchise) Bill delineates the electorate for the referendum, offering up the Parliament’s vision of “the people” to be entrusted with taking the constitutional choice next year.

The future of the welfare state and, in particular, social security benefits could be a key issue in the independence referendum. Spending on state pensions and benefits is the largest item in the UK budget and would be the largest item in the budget of an independent Scotland. Taking over responsibility for pensions and benefits would also be the most complex administrative task facing a new Scottish Government.

I conceived this lecture in an attempt to stand back from the partisan hurly-burly surrounding the independence referendum. Instead it probes the nature of the British state from which nationalists want to separate (though not, it seems, entirely) and to which unionists want to cleave (though not, it seems, all that closely).

On 18 March and 1 May 2013, at the Scottish Parliament and Glasgow City Chambers respectively, the Scottish Constitutional Futures Forum (SCFF), Human Rights Consortium Scotland, Glasgow Human Rights Network, and Glasgow Refugee, Asylum and Migration Network came together at the Scottish Parliament to discuss the place of human rights and Scotland’s constitutional future; an issue which has been largely side-lined in the independence debate to date.

The impact of constitutional change on environmental law in Scotland was the focus of an event held in Dundee as part of both the SCFF programme and the University of Dundee’s Five Million Questions project, a knowledge exchange programme aiming to inform the debate in the run-up to the referendum.

As the House of Lords Constitution Committee pointed out in its short report on what was then the Scotland Bill in 2011, while the devolutionary principle of Home Rule has now been accepted, indeed embraced, by all three of the UK’s main political parties, the consequences of devolution for Whitehall and Westminster continue to be unresolved.

At the fourth public event of the Scottish Constitutional Futures Forum, held at the University of Edinburgh School of Law on 27 February, Prof. Christine Bell and Prof. Neil Walker of the Law School discussed the constitutional process governing the forthcoming independence referendum of 2014.

On January 23, 2013 the Catalan Parliament adopted the Declaration of Sovereignty and Right to Decide of the Catalan People.[1] The Declaration proclaims ‘the people of Catalonia’ to be ‘a sovereign political and legal subject’ with a ‘right to decide … their collective political future’.

Debates leading up to the creation of the Scottish parliament demonstrated the huge potential to galvanise thinking about political change and the promotion of gender equality. However, women's voices and issues of gender equality and gender justice have been curiously absent from the current debates around constitutional futures in Scotland.

With the question now agreed for the Referendum, the Scottish Government published a plan on February 5th 2013 for what happens next – that is, between a Yes vote and the declaration of Independence in 2016. Significantly this outlines the parameters of drawing up a written constitution, a process that will begin post-independence.

Countries that are used to referendums on constitutional matters use them sparingly. The UK has no such constitutional requirement, but faces the possibility of having to deal with two such referendums within the space of a few years.

Last week the Catalan Parliament adopted a ‘Declaration of Sovereignty of the Catalan People’, as the first step in its plan of ‘National Transition’, leading up to the holding of a referendum on the constitutional future of Catalonia in 2014.

In 2007 the Scottish Government launched the National Conversation. This was an exercise to get people talking about independence. Although things have moved on quite a bit since then, it’s worth noting that the Scottish Government has achieved one of its objectives. We’re all discussing Scotland’s constitutional future in a way we were not a decade ago.

One of the key questions in the EU segment of the constitutional debate in Scotland is whether an independent Scotland could be required, under EU law, to adopt the Euro as its currency against the wishes of its government.

Giving evidence to the Scottish Parliament’s Referendum (Scotland) Bill Committee on the draft section 30 Order this morning, I was struck by the number of questions from the Committee about the precise legal effects of the Memorandum of Agreement between the UK and Scottish Government and of the section 30 Order.

On Monday 15 October 2012, the Prime Minister of the UK government and the First Minister of the Scottish Parliament, publicly signed in a formal ceremony a document entitled simply ‘Agreement between the United Kingdom Government and the Scottish Government on an Independence Referendum for Scotland, now known colloquially (in Scotland at least) as the ‘Edinburgh Agreement’ ...

The advice of the Scottish Law Officers may have become highly conspicuous by its absence in recent days, but over the years other prominent figures, including some excellent legal minds, have offered their considered opinion on the implications of Scottish independence for EU membership.

Typical. You wait ages for one regional parliament to call for a referendum, then two come along at once. Scotland’s own path towards a referendum can now be compared to Catalonia’s call for an independence plebiscite. Self determination must be contagious, but the international law doctrine of self-determination is an angle that has been overlooked at times in the independence debate.

The debate about Scotland’s constitutional future promises to be a debate about more powers for the Scottish Parliament, be it in the form of an independent Scotland, ‘independence-lite’, ‘devo-max’ or however else we want to describe our vision of the promised land.